Legal Victories Give Tobacco Firms A Second Wind

July 26, 1998|By Joan Beck.

Anyone who thought the tobacco industry was about to roll over and say "Uncle Sam" hasn't been paying close attention. Despite Congress and the president and the state attorneys general and the courts and the EPA and the FDA, the tobacco business is still thriving. The tobacco companies are, in fact, greasing their way out of some serious threats.

The tobacco bill, so widely heralded months ago as a way to curb teen smoking, curtail the most objectionable cigarette advertising, compensate some victims and contribute money to the federal budget, is effectively dead. The tobacco industry, which initially seemed so willing to cooperate with Congress in hopes of reducing threats of litigation by the families of dead and dying smokers, backed out. Its clever advertising campaign twists the legislation into a tax on working-class people (blue-collar workers and the poor smoke more than other groups) and an intrusion of government into personal life.

The bill always did have serious faults. But the tobacco industry's success in getting it shelved, manipulating members of Congress and persuading a substantial chunk of voters to accept industry distortions will probably be studied in business schools for years to come.

In the process of spending $40 million to blow up what it calls "the McCain tobacco tax bill," the industry is unfairly smearing the reputation of an authentic American hero. Sen. John McCain (R., Ariz.) has stood up for what he believes at the risk of alienating other Republicans on issues such as campaign finance reform and smoking. (As a prisoner of war in Vietnam for six years, he was repeatedly tortured because he refused to be repatriated as a propaganda gesture intended to demoralize other Americans.)

Last week, the tobacco industry also won a major victory in a case in which it sought to overturn the 1993 report by the Environmental Protection Agency that linked second-hand smoke with cancer and rated it as a "Class A carcinogen." The study is often cited by supporters of state and local ordinances that ban smoking in public buildings and require non-smoking areas in restaurants and other facilities.

In the case, William L. Osteen, a federal district judge in North Carolina, ruled the EPA overstated its findings that smoking could be dangerous to non-smokers. He said the EPA's study panel was flawed because it did not have tobacco industry representatives and the report used "selective information," disregarded some data and was "publicly committed to a conclusion before research had begun."

Tobacco industry officials have been quick and aggressive to herald Osteen's ruling as a legal tool to slow--or even reverse--the trend toward outlawing smoking in public places. Efforts are under way in several cities and states to overturn bans on smoking in restaurants and bars.

Tobacco companies expect to use the decision to deflect other court cases in which plaintiffs have claimed they were harmed by second-hand smoke. For example, the industry settled a class-action suit brought by flight attendants forced to work in smoke-filled planes for $349 million to be used for a research foundation.

But dozens of other studies have clearly shown second-hand smoke can cause illness and even death, especially in young children. The EPA stands by its report. USA Today quotes EPA administrator Carol Browner as saying, "You've got to look at the judge," and reports Osteen was a tobacco lawyer before he became a judge, although he did rule against the industry in an earlier case. And, it should be noted, this is the same tobacco industry that for decades refused to acknowledge the mountains of research showing smoking causes more than 400,000 deaths and incalculable illness every year.

In recent months, cigarette companies have also won several other legal victories, including a decision by a Florida appeals court overturning a verdict against Brown and Williamson Tobacco Corp. that awarded $750,000 to an air-traffic controller with lung cancer.

Meanwhile, cigarette companies are still trying to negotiate their way out of lawsuits brought by the attorneys general of 37 states over smoking-related health costs and apparently are finding state officials less demanding than they were last year when they made the settlement that has now collapsed.

The industry is also having considerable success in painting smoking issues as a matter of freedom of choice, arguing that government regulation is more nannyism, that more taxes on cigarettes will lead to a black market and that more lawsuits could drive a major segment of the economy into bankruptcy. Even mainstream publications are fretting that crusades against smoking are turning children against their parents, restricting advertising violates the First Amendment and smoking may actually contribute to health by reducing stress. As for those extra medical costs smokers incur, they are more than balanced out by premature deaths that reduce Social Security payments.

But the battle over tobacco is far from over. Too many of us have lost people we love to illnesses linked to smoking. Too many of us are repulsed by transparent efforts to addict young people to cigarettes. Too many of us resent the influence tobacco companies exert on federal, state and local legislators and the untouchable status they enjoy with government regulators. Millions of us enjoy the non-smoking rules, are relieved not to be assaulted by the stale stink of old smoke when we board a plane, appreciate having workplaces and restaurants with clearer air.

Our cultural tolerance for smoking and indoor air pollution has changed. Despite the tobacco industry's recent victories, it shouldn't count on winning the long-term war.